Opinion
FLEMING, J.
James Howard Collins appeals his conviction by a jury of second degree robbery. (Pen. Code, §211.)
The Robbery
Mrs. Juanita Chambers and her daughter Delenna Sue Chambers were tending their small grocery store in Long Beach at 7:30 p.m. on 15 April [603]*6031969. Collins entered the store, walked to the meat counter and asked Mrs. Chambers for a pickled pig’s foot. Mrs. Chambers noticed Collins as he approached the meat counter and remembered having seen him in the store at different times before. She picked out a pickled pig’s foot, wrapped it, put on a second wrapper at Collins’ request, collected payment, handed back change, and when Collins left the meat counter she picked up some bottles to carry into another room. Delenna Sue, age 17, was at the cash register, and she first saw Collins when he was five or six feet away at the meat counter buying the pickled pig’s foot from Mrs. Chambers. She then noticed him walking to the beer counter. A few minutes later he came to Delenna Sue’s counter, set a can of beer on it, and pointed a gun at her. He was about a foot away. She glanced at him for about two seconds, got “Not a real good look, but, you know, enough to know what he looked like,” screamed, and ran to her mother who had just stepped through the door into the other room. Delenna Sue and her mother returned to the cash register a few seconds later, but Collins was gone and so was most of the $200 which had been in the cash register.
Collins admitted he had been in the store on prior occasions but claimed he was elsewhere at the time of the robbery.
Mildred Bailey, a friend of Collins’ sister, testified that about 7, 8, or 9 p.m. on the night of the robbery she saw Collins walking fast in an alley near the Chambers’ store and spoke to him.
The Identifications
Evidence at a pretrial hearing to suppress evidence brought out the foregoing facts and also revealed that immediately after the robbery Mrs. Chambers and Delenna Sue described the robber to the police as 5'6" tall and 140 pounds. Collins testified that he was 6'3" or 6'4" tall and 165 to 170 pounds. Mrs. Chambers explained the discrepancy by stating that she and Delenna Sue were standing on raised platforms behind the counters at the times they waited on Collins.
The day after the robbery Police Officer Lance showed Mrs. Chambers and Delenna Sue photographs of eight different suspects. Both women picked out a photograph of Collins. Two days later a different officer, Officer Lambert, showed Mrs. Chambers and Delenna Sue a different set of photographs containing a different photograph of Collins. Neither woman positively identified Collins’ photograph from this set. Mrs. Chambers testified she had not understood the officer wanted her to again pick out a photograph but that she had had in mind the photograph of Collins, although it was a different, darker one. Delenna Sue testified she put [604]*604aside Collins’ photograph, but was not really sure of it because “he was more dark complected” in this photograph.
Because Mrs. Chambers and Delenna Sue were unable to pick out a photograph from the set shown them by Officer Lambert, Collins, then in custody, was released. A week later, Officer Lance called on Mrs. Chamr bers and Delenna Sue to inquire about their identifications and showed them both sets of photographs. They affirmed their original identifications and explained that the second photograph of Collins had been too dark. Officer Lance then undertook to rearrest Collins.
Collins was not located for three months and was not rearrested until 3 a.m. on 24 July 1969. At 1 p.m. that day Mrs. Chambers and Delenna Sue identified him in a lineup. Although the lineup was otherwise fairly conducted, it was held without compliance with defendant’s request for the presence of an attorney. At 12 noon Collins had asked to have an attorney present, but neither a private attorney nor the public defender were available at the scheduled time of the lineup. The lineup evidence was not used at the trial.
Mrs. Chambers and Delenna Sue identified Collins as the robber at the preliminary hearing, at the pretrial hearing to suppress evidence, and later at the trial itself.
Mrs. Chambers was asked: “Q. Now do you feel that you could identify the suspect at any time after the robbery occurred? A. Yes. Q. Irrespective of any photographs or lineups; is that right? A. Right.”
Delenna Sue was asked: “Q. Is it a fact that when you look at Mr. Collins right now and identify him, you are identifying him in your mind, you feel three different things, that he is the man who robbed you, that he is the man whom you saw in the photos, and that he is also the man that was at the lineup; isn’t that right? A. Yes.”
The motion to suppress the evidence of the identifications was denied, and at the subsequent trial the jury found defendant guilty of second degree robbery.
Should the Witness Identifications Have Been Suppressed?
The sole issue of consequence is whether the witness identifications should have been suppressed.1 Collins contends that the in-court identi[605]*605fications by Mrs. Chambers and Delenna Sue were tainted by an invalid lineup and should have been suppressed. He relies on the proposition that a suspect has the right to the assistance of counsel at a lineup (United States v. Wade, 388 U.S. 218 [18 L.Ed.2d 1149, 87 S.Ct. 1926]; Gilbert v. California, 388 U.S. 263 [18 L.Ed.2d 1178, 87 S.Ct. 1951]), and he points out that his request for the presence of an attorney at the lineup was not honored.
The mixup with respect to the lineup came about because Officer Lance telephoned Mrs. Chambers and Delenna Sue to come to the station to view a lineup at 1 p.m. Another officer got in touch with defendant and told him a lineup was scheduled at that time and he was entitled to have an attorney present. Defendant requested an attorney, and at 12 o’clock Officer Lance called the public defender’s office. He was told no one would be available until 2:30 that afternoon. He could not reach Mrs. Chambers and Delenna Sue to tell them not to come in, and the two arrived at the police station promptly at 12:30 p.m. At 12:45 Officer Lance again called the public defender’s office and was again told no public defender was available. The lineup was held at 1 p.m. It thus appears the police gave priority to the convenience of the victims of the robbery rather than to the presence of counsel for the suspect at the lineup. This decision, although understandable, was erroneous in that the convenience of the victims should have been subordinated to the suspect’s right to counsel at the lineup. Mrs. Chambers and Delenna Sue should have been told to wait until 2:30 p.m. or the lineup should have been rescheduled or cancelled.
We have here a classic instance of Cardozo’s constable’s blunder, and the issue is whether because of that blunder the criminal should go free. The evidence of the lineup itself was never used, and hence direct use of inadmissible evidence is not involved. Rather the question is whether the three subsequent courtroom identifications of Collins by Mrs.
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Opinion
FLEMING, J.
James Howard Collins appeals his conviction by a jury of second degree robbery. (Pen. Code, §211.)
The Robbery
Mrs. Juanita Chambers and her daughter Delenna Sue Chambers were tending their small grocery store in Long Beach at 7:30 p.m. on 15 April [603]*6031969. Collins entered the store, walked to the meat counter and asked Mrs. Chambers for a pickled pig’s foot. Mrs. Chambers noticed Collins as he approached the meat counter and remembered having seen him in the store at different times before. She picked out a pickled pig’s foot, wrapped it, put on a second wrapper at Collins’ request, collected payment, handed back change, and when Collins left the meat counter she picked up some bottles to carry into another room. Delenna Sue, age 17, was at the cash register, and she first saw Collins when he was five or six feet away at the meat counter buying the pickled pig’s foot from Mrs. Chambers. She then noticed him walking to the beer counter. A few minutes later he came to Delenna Sue’s counter, set a can of beer on it, and pointed a gun at her. He was about a foot away. She glanced at him for about two seconds, got “Not a real good look, but, you know, enough to know what he looked like,” screamed, and ran to her mother who had just stepped through the door into the other room. Delenna Sue and her mother returned to the cash register a few seconds later, but Collins was gone and so was most of the $200 which had been in the cash register.
Collins admitted he had been in the store on prior occasions but claimed he was elsewhere at the time of the robbery.
Mildred Bailey, a friend of Collins’ sister, testified that about 7, 8, or 9 p.m. on the night of the robbery she saw Collins walking fast in an alley near the Chambers’ store and spoke to him.
The Identifications
Evidence at a pretrial hearing to suppress evidence brought out the foregoing facts and also revealed that immediately after the robbery Mrs. Chambers and Delenna Sue described the robber to the police as 5'6" tall and 140 pounds. Collins testified that he was 6'3" or 6'4" tall and 165 to 170 pounds. Mrs. Chambers explained the discrepancy by stating that she and Delenna Sue were standing on raised platforms behind the counters at the times they waited on Collins.
The day after the robbery Police Officer Lance showed Mrs. Chambers and Delenna Sue photographs of eight different suspects. Both women picked out a photograph of Collins. Two days later a different officer, Officer Lambert, showed Mrs. Chambers and Delenna Sue a different set of photographs containing a different photograph of Collins. Neither woman positively identified Collins’ photograph from this set. Mrs. Chambers testified she had not understood the officer wanted her to again pick out a photograph but that she had had in mind the photograph of Collins, although it was a different, darker one. Delenna Sue testified she put [604]*604aside Collins’ photograph, but was not really sure of it because “he was more dark complected” in this photograph.
Because Mrs. Chambers and Delenna Sue were unable to pick out a photograph from the set shown them by Officer Lambert, Collins, then in custody, was released. A week later, Officer Lance called on Mrs. Chamr bers and Delenna Sue to inquire about their identifications and showed them both sets of photographs. They affirmed their original identifications and explained that the second photograph of Collins had been too dark. Officer Lance then undertook to rearrest Collins.
Collins was not located for three months and was not rearrested until 3 a.m. on 24 July 1969. At 1 p.m. that day Mrs. Chambers and Delenna Sue identified him in a lineup. Although the lineup was otherwise fairly conducted, it was held without compliance with defendant’s request for the presence of an attorney. At 12 noon Collins had asked to have an attorney present, but neither a private attorney nor the public defender were available at the scheduled time of the lineup. The lineup evidence was not used at the trial.
Mrs. Chambers and Delenna Sue identified Collins as the robber at the preliminary hearing, at the pretrial hearing to suppress evidence, and later at the trial itself.
Mrs. Chambers was asked: “Q. Now do you feel that you could identify the suspect at any time after the robbery occurred? A. Yes. Q. Irrespective of any photographs or lineups; is that right? A. Right.”
Delenna Sue was asked: “Q. Is it a fact that when you look at Mr. Collins right now and identify him, you are identifying him in your mind, you feel three different things, that he is the man who robbed you, that he is the man whom you saw in the photos, and that he is also the man that was at the lineup; isn’t that right? A. Yes.”
The motion to suppress the evidence of the identifications was denied, and at the subsequent trial the jury found defendant guilty of second degree robbery.
Should the Witness Identifications Have Been Suppressed?
The sole issue of consequence is whether the witness identifications should have been suppressed.1 Collins contends that the in-court identi[605]*605fications by Mrs. Chambers and Delenna Sue were tainted by an invalid lineup and should have been suppressed. He relies on the proposition that a suspect has the right to the assistance of counsel at a lineup (United States v. Wade, 388 U.S. 218 [18 L.Ed.2d 1149, 87 S.Ct. 1926]; Gilbert v. California, 388 U.S. 263 [18 L.Ed.2d 1178, 87 S.Ct. 1951]), and he points out that his request for the presence of an attorney at the lineup was not honored.
The mixup with respect to the lineup came about because Officer Lance telephoned Mrs. Chambers and Delenna Sue to come to the station to view a lineup at 1 p.m. Another officer got in touch with defendant and told him a lineup was scheduled at that time and he was entitled to have an attorney present. Defendant requested an attorney, and at 12 o’clock Officer Lance called the public defender’s office. He was told no one would be available until 2:30 that afternoon. He could not reach Mrs. Chambers and Delenna Sue to tell them not to come in, and the two arrived at the police station promptly at 12:30 p.m. At 12:45 Officer Lance again called the public defender’s office and was again told no public defender was available. The lineup was held at 1 p.m. It thus appears the police gave priority to the convenience of the victims of the robbery rather than to the presence of counsel for the suspect at the lineup. This decision, although understandable, was erroneous in that the convenience of the victims should have been subordinated to the suspect’s right to counsel at the lineup. Mrs. Chambers and Delenna Sue should have been told to wait until 2:30 p.m. or the lineup should have been rescheduled or cancelled.
We have here a classic instance of Cardozo’s constable’s blunder, and the issue is whether because of that blunder the criminal should go free. The evidence of the lineup itself was never used, and hence direct use of inadmissible evidence is not involved. Rather the question is whether the three subsequent courtroom identifications of Collins by Mrs. Chambers and by Delenna Sue were so tainted by the invalidity of the lineup that the entire identification testimony of the victims should be suppressed, and the prosecution abandoned.
We reject any suggestion that the absence of counsel from a lineup operates to give a defendant immunity from prosecution. We think Justice White overstated when he said in his dissent in Wade: “To all intents and purposes, courtroom identifications are barred if pretrial identifications have occurred without counsel being present.” (388 U.S. at p. 251 [18 L.Ed.2d at p. 1171].) Wade and Gilbert require only that evidence of in-court identifications be excluded if the identifications are tainted by the improper lineup. In-court identifications are admissible if the prosecution [606]*606establishes that they are based on observations of the defendant other than those made at the improper lineup. (People v. Hagen, 6 Cal.App.3d 35, 46-47 [85 Cal.Rptr. 556].)
The trial court which heard the motion to suppress evidence found that the in-court identifications by Mrs. Chambers and Delenna Sue were not tainted by the lineup observation and denied the motion to suppress.2 In our view the record supports this ruling. During the robbery both Mrs. Chambers and Delenna Sue looked directly at Collins from distances of a foot or so. Mrs. Chambers recognized him at the time as someone she had seen in the store on previous occasions. Delenna Sue glanced at him two or three seconds, long enough “to know what he looked like.” Since the robbery both Mrs. Chambers and Delenna Sue have positively identified Collins on each occasion they have seen him. The day after the robbery both women identified Collins by photograph. Two days later both women saw another photograph of Collins and declined to identify it because the photograph was too dark. When subsequently shown both sets of photographs both women again identified Collins as the robber. At the preliminary hearing both witnesses identified Collins. At the pretrial hearing Mrs. Chambers said that she could identify Collins “Irrespective of any photographs or lineups.” Delenna Sue said that she identified Collins in court because, besides being in the lineup and in photographs, he was the man who robbed her. At the trial identifications by both witnesses were positive, emphatic, and unshaken.
Since the record amply supports the trial court’s finding that the in-court identifications were made independently of observations at the invalid lineup, the identifications were properly received in evidence, and the judgment is affirmed.
Herndon, J., concurred.